Ireland: Changes to maternity leave and non disclosure agreements

Maternity Leave

The Act facilitates the postponement of maternity leave for any employee who is pregnant or on maternity leave and has a serious health condition. Employees can notify their employer in writing and seek a postponement of up to 52 weeks. A serious health condition is defined as a condition that poses a serious risk to the life or health, including mental health, of the employee and requires necessary medical intervention that is ongoing. The employee must make this notification at least two weeks before the postponement is due to commence. The notification must include the proposed commencement date and end date, which must be at least five weeks from the commencement date, and attach a medical certificate signed by a medical practitioner confirming those dates.

Employers will need to prepare updates to their maternity leave policies to address these changes and ensure that managers and HR are aware of these additional obligations.

Non-Disclosure Agreements

The Act inserts a new section 14B into the Employment Equality Act 1998 which renders non- disclosure agreements ("NDA's") relating to discrimination, victimisation, harassment and sexual harassment null and void. There is a narrow carve out in the legislation in the form of an exempted non-disclosure agreement however, the conditions attaching to this exemption are relatively complex.

Resolutions by way of a mediated agreement through the Workplace Relations Commission ("WRC") are specifically excluded from Section 14B and confidentiality is retained.

If there are no allegations or claims relating to discrimination, victimisation, harassment and sexual harassment being addressed by the compromise agreement, confidentiality clauses should remain enforceable.

Exempted non-disclosure agreements

In order to avail of the carve out set out in the Act, the following conditions must be met:

• The agreement must be in writing.
• The NDA must be requested by the employee.
• The agreement must be of unlimited duration, unless the employee elects otherwise.
• Clear easily understood language must be used and an easily accessible format applied (including by any party with a disability).
• The Act provides for a 14 day cooling off period after the agreement is executed during which the employee has a right to withdraw from the agreement without penalty.
• A copy of the executed agreement must be provided to the employee by the employer.
• In order to avail of the exemption the agreement must include a provision that the agreement does not prohibit the making of relevant disclosures, to one or more listed persons, where at the time of the making of the disclosure, the person concerned is acting in the course of their office, employment, business, trade or profession. Listed persons referenced in the legislation include an Garda Siochana, lawyers, medical practitioners, mental health professionals, Revenue, Ombudsman, trade union official or such individual as may be specified in the agreement.

Although it will be possible to comply with these conditions, it is likely to make settlements more protracted and costly as legal advice must be taken by the Complainant. The requirement for the employee to request the NDA may complicate settlements. It also remains unclear what level of legal costs and expenses might be deemed to be "reasonable". The application of a cooling off period will need to be considered in relation to the agreed payment date. Given the various elements involved, litigation in this area seems likely.

Historically employers would have imposed a blanket confidentiality ban in compromise agreements addressing any issues related to the employment, to include harassment, sexual harassment, victimisation and discrimination claims. The ability to do so has now been significantly narrowed. A case by case assessment should now be carried out when resolving claims falling under these headings.

In that regard employers should consider the following:

• If employers wish to rely on the exempted NDA carve out, they will need to amend compromise agreements addressing discrimination, victimisation, harassment and sexual harassment to ensure that the conditions set out above are clearly documented in the agreement.
• Employers may wish to engage in mediation through the WRC to resolve particularly sensitive cases involving these issues to retain confidentiality.
• If cases falling under these headings are assessed as low risk from a reputational perspective, employers may choose to exclude the standard confidentiality clause from the compromise agreement.